Thursday, Dec 02 2010
• 1 p.m. (ET)

Wielding the Presidential Pardon

Nearly two years into his term, President Obama has pardoned more Thanksgiving turkeys than human beings. It’s a trend across recent administrations, both Republican and Democratic. We explore the evolution of the presidential pardon and the concerns over its less-frequent use in recent years.

Guests

P.S. Ruckman
Associate Professor of Political Science at Rock Valley College; Editor of the blog Pardon Power

Samuel Morison
Former attorney-advisor at the Office of the Pardon Attorney in the U.S. Department of Justice and current Appellate Counsel in the Defense Department's Office of Military Commissions

Transcript

13:06:35

MS. DIANE VOGELFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your community with the world. I'm Diane Vogel sitting in for Kojo. Coming up later in the hour, a musical romp through women's lives with a group called the Four Witchin' Babes. Okay, okay, so their name has a B in it, but I don't want to say that. But first, Thanksgiving has come and gone and with it the ritual pardoning of a turkey started by the first President Bush, H.W Bush that is, in 1989.

13:07:23

MS. DIANE VOGELWhile the turkeys no doubt appreciate their reprieve, there seems to be growing concern that recent presidents aren't pardoning enough human beings. Until President Obama pardons somebody, until and unless President Obama pardons somebody within the next two weeks, sometime before December 20th, he'll become the slowest president in history to ever issue his first pardon.

13:07:49

MS. DIANE VOGELThe presidential pardon is an often misunderstood tool that seems to have evolved over time. Developments like the parole system and a robust appeals process have affected and changed the nature of pardons. So legal scholars, though, today say that they see the slowdown of pardons in recent decades as a dangerous trend that may be weakening our judicial system. We'll find out why in conversation with Sam Morison.

13:08:17

MS. DIANE VOGELSam's an attorney who worked in the Justice Department's Office of the Pardon Attorney for 13 years. He worked under three presidents in both parties. He currently has a day job as the Appellate Defense Council in the Defense Department's Office of Military Commissions. But we're talking to him about his role as a Justice Department pardon attorney, which he was until just a couple months ago.

13:08:41

MR. SAMUEL MORISONThat's right, until the end of July.

13:08:42

VOGELThanks so much for being here, Sam.

13:08:44

MORISONThank you.

13:08:45

VOGELAlso with us, joining by phone from Illinois, is P.S. Ruckman. Professor Ruckman is an associate professor of political science at Rock Valley College and Peter Ruckman edits the blog called Pardon Power. Thanks so much for being here, Peter.

13:09:03

MR. P.S. RUCKMANMy pleasure, Diane.

13:09:04

VOGELTerrific. Well, I know that -- the first thing I thought of, before we get to the serious stuff, I was shocked to learn that George H.W. Bush was the first guy to pardon turkeys. Okay. Was that really true?

13:09:18

MORISONSo far as we know. I don't know if that's actually been documented. But so far as we can tell, that's the case. The turkeys actually started under Truman, but I think Bush was the first one to decide to pardon one.

13:09:30

VOGELYeah, I know most of the previous ones were dressed and cooked for Thanksgiving at the White House.

13:09:34

MORISONThat's right, that's right.

13:09:36

VOGELWell, until -- Peter Ruckman, until 2000, I understand that there was a sort of a typical trend for pardons and that there were average amounts of pardons that the president made and we've seen a pretty dramatic change since the year 2000. So give me a feeling. What was typical for most presidents before and what's been typical since?

13:10:02

RUCKMANWell, I'd go farther back than that. Since 1945, there have been about 8,000 pardons and commutations of sentence. Presidents have averaged a little over 100 a year so these happen much more often than people realize. And about 92 percent of those actions have been pardons. So commutations have been fairly rare. And with recent presidents, you're correct, we have had quite a bit of a dip off in terms of total numbers. For Bush, there were 200, for President Clinton, 400 or so, 77 for Bush before him. You have to go back to Lyndon Johnson to find anyone who granted more than a thousand or so pardons and commutations.

13:10:46

VOGELNow for those of us who aren't lawyers, what's the difference between a pardon and a commutation just so that we know? And tell us whether we need to make that distinction in this conversation or not really.

13:10:56

MORISONWell, actually, I think you do need to make the distinction. Those are the two basic forms of executive clemency and a commutation simply means a reduction of sentence in some way. Could be the reduction of a fine, but typically it's someone who's in prison who wants to have their sentence shortened and that raises one set of concerns. Pardons are typically reserved for after the person has fully completed their sentence, they've lived in the community for some reasonable period of time and reestablished themselves as a solid citizen and they want their rights restored.

13:11:31

MORISONThat's become increasingly important as legislatures and the federal Congress have passed what's called civil disabilities. These are legal restrictions that are imposed on anyone convicted of most felony offenses and it restricts their right to practice certain professions and to own a firearm and, in some states, the right to vote. And so, the practical legal effect of a pardon is to remove those.

13:12:00

VOGELSo P.S. Ruckman, how does the -- you've said the presidential pardon system or function is a really crucial part of the checks and balances between the three governing parties, that's the wrong word, between our government structure. How so?

13:12:19

RUCKMANI believe so. And to add one more thing, I think what Sam said was very important because there's a misconception that pardons, somehow or another, spring people from prison and toss criminals in the streets and overturn the verdicts of judges and juries and nothing could be further from the truth. The typical pardon simply restores the rights of someone, as Sam explained, who's already served their time and they've a period of time prescribed by law before they've even applied for their pardon. Yeah, the pardon power is a recognition that the other two branches are not perfect.

13:12:49

RUCKMANIt's one of the many checks and balances in our system. Laws are not perfect. Sometimes they're inflexible. Sometimes courts make mistakes. Sometimes people are rehabilitated. And there's a sense that in our system, people should not be eternally punished for every possible offense. And so, as Sam explained very carefully, the pardon typically restores their civil rights.

13:13:14

VOGELThat's P.S. Ruckman, professor of political science at Rock Valley College and the editor of the blog, Pardon Power, which you can find at a link at our website, kojoshow.org, www.kojoshow.org. We're also talking with Sam Morison, an attorney who used to work in the Justice Department's Office of the Pardon Attorney for more than 13 years. And we are talking about wielding the presidential pardon and why so recently both President Obama and President Bush have -- you know, President George W. Bush, in fact, have something quite in common.

13:13:53

VOGELThey both waited more than 650 days or so to have their first pardon that they issued while in power. You can join this conversation. Do you have questions about the pardon system? Do you remember one or two headline events, maybe it was, you know, Marc Rich for President Clinton or Gerald Ford's pardoning Nixon, that you think teaches us an important lesson about what the pardon process should be used for or shouldn't be used for. You can join this conversation at 1-800-433-8850, 1-800-433-8850. Or you can e-mail us at kojo@wamu.org.

13:14:34

VOGELPeter Ruckman, I understand that you have really dug deep into these numbers and you've done the math and you found that the political party of a president isn't necessarily the most telling thing about, you know, whether he'll be giving a lot of pardons or a few pardons or whether you'll be tough on this or not. What have you learned about patterns of how presidents tend to give out pardons?

13:14:59

RUCKMANWell, these are generalizations based on aggregate data that actually Republicans presidents have historically been a little more stingy with the power. Presidents who are former governors have also been a little more stingy. Presidents who have been former lawyers have actually been more generous. And hopefully what you can tell already is these things would have led one to expect President Obama would have been doing a lot more than he's been doing. In addition, if there have been major pardon controversies, presidents have tended to follow those by just kind of cooling their heels on pardons for a while.

13:15:32

RUCKMANAnd then, something else I think that Sam and I have talked about in the past is there's a disturbing trend. I think or we think that the distance between the time served and the pardons are increasing. In the 1940s, it was about a five-year difference on average. Up in 2005 or so, it's up to 20 years. With George Bush, it was 22 years.

13:15:54

VOGELWow, that's a big difference.

13:15:56

MORISONYes. Under the rules the pardon office operates under, which aren't legally binding on the president. They adjusted rules that are made for his convenience. But the Pardon Office does follow them. There's a five-year waiting period. But that's actually quite misleading. Five years is a minimum. As Peter says, in reality in recent years, it's more like 20 years before you're really a pardoned candidate. And the consequence of that is that pardons are becoming increasingly reserved for the people who need them the least. They tend to be very old, very minor crimes, often crimes that wouldn't even merit federal prosecution if they happen today.

13:16:41

MORISONThere was a joke around the office when I was there that one of President Clinton's pardons, for example, was for a man who stole a pound of butter in World War II and was court marshaled for it. So he was the butter man and we joked about that. Now, I'm sure he was grateful for getting a pardon, but that's not really a profile encouraged to pardon somebody who stole a pound of butter. And so the people who are younger, the people who have been out of prison maybe eight, ten years who are in their 40s who have a career ahead of them and a family to take care of, they're the least likely to get a pardon.

13:17:14

VOGELMm-hmm. Now, you've said that working in the office you make these recommendations. It's sort of hard for those of us who live outside the Justice Department to wrap our head around that. You're the people who prosecute these crimes and you're also the people who recommend the pardons. So give us a window into that.

13:17:33

MORISONWell, it is an inherent conflict of interest and that is part of the problem. By a very long-standing tradition, the presidents relied on the advice of the Justice Department to grant or deny pardon applications. And in point of fact, the president almost invariably does what he's advised to do. So whatever the pardon attorney recommends, most of the time is what's going to happen. What's occurred, in my opinion, in the last 20 years or 25 years is that the process has become increasingly dominated by a prosecutorial ideology, if you will, that's very tough on crime and that doesn't -- that wants, frankly, to keep them to a minimum.

13:18:20

MORISONThe idea -- the prevailing idea in the office is that anytime we grant clemency to somebody, we're giving up on the good work that some line prosecutor did. I think if the advisory process is done in a responsible way, it's, in fact, the opposite and that should breed respect for criminal justice because what it says is these are criminal justice success stories. That people can and do sometimes change. So if somebody can put together a compelling case that they've rehabilitated, that's something that we ought to embrace. That's something that the criminal justice system itself ought to favor not disfavor.

13:19:01

VOGELWe're talking -- that's Sam Morison, he's a former attorney with the Justice Department's Office of the Pardon Attorney. He was there until this past July. We're also talking with Professor P.S. Ruckman. He's a professor of political science at Rock Valley College. He's joining us by phone from Illinois and he's also the editor of the blog, Pardon Power. You can get a link to Pardon Power at our website, kojoshow.org.

13:19:27

VOGELYou can join this conversation. Call 1-800-433-8850 to get your ideas and your voice into the conversation or send us an e-mail at kojo@wamu.org. We're going to take a short break. And when we come back, we'll talk a bit more about that tension within the Office of the Pardon Attorney and also about an op-ed that we read recently. Thanks very much. You're listening to "The Kojo Nnamdi Show." I'm Diane Vogel.

13:21:54

VOGELWelcome back to "The Kojo Nnamdi Show." I'm Diane Vogel sitting in for Kojo. We're hoping he'll be back tomorrow. We're talking today about wielding the Presidential pardon. And Professor Ruckman from Rock Valley College, one of the things that struck, Professor Ruckman, is that more than half of all pardons seem to be issued every December. We all hear about it, you know, Christmas Eve, people get pardoned. Is that something that you would encourage or is that sending the wrong message? Why is that, when it usually happens?

13:22:31

RUCKMANWell, my research has shown that one out of every two pardons for the last 39 years has been granted in the month of December alone. And, yeah, I think it sends the wrong signal from several directions. It suggests that pardons, I think, to some people are gifts, gifts which may or not be deserved. And, I think, as our discussion is establishing, if you get a pardon out of any recent President, you certainly deserved it. And in addition, I think it sends a signal that pardons are kind of an afterthought. You know, the 200 plus thousand people in federal prison are there all year round.

13:23:08

RUCKMANAnd the people that are applying for pardons by the thousands, you know, they're interested in clemency year round as well. And yet when they all -- when they come down in December, it sends a signal that they are an afterthought to the administration and/or the Department of Justice.

13:23:24

VOGELThanks, Peter. We're going to go the telephones now. We're going to start with Marc in Washington, D.C. Marc, you're on the air.

13:23:31

MARCHello, yes, (unintelligible), thank you for taking my call. And to be briefly, I have a long story. I wanted to know what is the chances of me getting a pardon from President of the United States, since I am a national foreigner and there's no law in the books in the United States for me. Here's the story. I got, 20 some years ago, convicted of racketeering and I pleaded guilty to that, didn't spend no time in jail, cooperated with the government. In the years of my cooperation, I was kidnapped by bad guys, rescued by the FBI and they said, well, you know, for your cooperation, things like that, your life's in danger.

13:24:13

MARCThey changed my name, Justice Department changed my name and tried to give me a new identity. And after that, they just left me alone. I mean, I am in no-man's-land. There is no law in the books for me in the United States. The only way that I can get back 20 some years -- I send a daughter to Columbia. I am become a good parent and done everything right, but I cannot be legalized in this country because of that felony charge that happened 20 some years ago.

13:24:44

VOGELMarc, I think...

13:24:45

MARCAnd is -- I only need the pardon from the President of the United States to get me going.

13:24:51

VOGELTerrific.

13:24:51

MARCWell, what is my chance?

13:24:53

VOGELTerrific, Marc. In Washington, D.C., that's a compelling story. Sam, if you're the attorney who worked in that office...

13:25:00

MORISONRight.

13:25:00

VOGEL...is this type of thing that would've gotten an appeal and what advice can you give to Marc?

13:25:04

MORISONWell, you know, it's a difficult environment. I don't want to mislead him. Pardons to avert deportation have been done traditionally. I think they're among the most compelling pardon cases that the office sees because they're -- often the stakes are so high. People have built their life in the United States, sometimes for decades like this caller and for them to be deported would be a terrible thing. So I do think it's a compelling case. All I can suggest to him is that he put his petition together as carefully as he can and tell that story and be sure that it's all accurate and complete because any misstatement is likely to be held against him.

13:25:50

MORISONOn the other hand, there've been very few pardons, I have to say, for immigration purposes in the last 20 years or so.

13:25:58

VOGELPeter, do you have anything to add?

13:26:00

RUCKMANNo. I think I'm fine with that.

13:26:01

VOGELTerrific. I go to this e-mail from Rod in Washington, D.C. Rod says, "We all remember President Clinton's pardon of Marc Rich and how it caused a political flop. And Republicans had a field day with other Clinton pardons, too. Clinton had pardoned one young man convicted of drug charges after the Archbishop of Los Angeles had written to Clinton to request it. But later, Republicans dug up dirt on the guy and then the Archbishop of Los Angeles said he regretted asking for the pardon. I found it all amazing. So President Obama may just have events like this in mind as he ponders whether or not to pardon. Or maybe President Obama has just been too busy with the issues we need to deal with today than to deal with pardons."

13:26:47

MORISONWell, first of all, it is in the constitution. It's his constitutional responsibility to deal with pardons. So he can't lay it off on, I'm too busy doing other things. I understand that it's not at the top of his agenda, but it's got to be there somewhere. And historically, Presidents have always taken the pardon power quite seriously until recent years. Secondly, I think what I would say about Marc Rich, and I don't know what Peter wants to chime in on, but I think that's misleading. It's really the very exceptional case that gets that much attention in the media and it skews the public's perspective of how politically risky these things are.

13:27:25

MORISONMost pardons are garden variety offenses to ordinary citizens that entail no controversy whatsoever. So that -- to focus on the Marc Richs' of the world, is really distorting what's going on.

13:27:41

VOGELAnd Peter, is that what you've found as well? I would imagine that your research -- you're looking into all of these pardons. Is the politically motivated pardon the norm, not the norm, does it happen on both sides? Tell me a little bit about what you found.

13:27:57

RUCKMANWell, I take the position that every generation of Americans had seen its pardon or if not several pardons which at the time, everyone -- made everyone excited and people thought this was the end-all pardon controversy. And the amazing thing is we quickly forget. We forget the pardons of axe murders and gang land executioners and they're quickly off the map. And I think that actually supports the idea of what Sam is saying, that the typical pardon just doesn't fit into that category. And the focus on the media controversial pardons I don't think it's unnecessary. I think it's important to focus on things that are controversial and deserve, you know, reporting.

13:28:41

RUCKMANBut they do not shed very much light at all on the typical pardon applicant or granting of a pardon.

13:28:48

VOGELThat's P.S. Ruckman, associate professor of political science at Rock Valley College, joining us by phone from Illinois. He's also the editor of the blog Pardon Power. Also in studio with us is Sam Morison, an attorney who worked with the Justice Department's Office of the pardon attorney for more than 13 years under three different presidents. Sam, it's my understanding that -- we talked for a moment about politically motivated versus non-politically motivated.

13:29:16

VOGELWe don't have much time left in the conversation, but I wanted to let both Grant from Washington, D.C. ask his questions and I'm hoping that as you address his answers, you can also address kind of who the pardon attorney is in the Justice Department now and what we might expect to see as solutions for the future. Go ahead, Grant.

13:29:39

GRANTYes, thanks a lot. I think the pardon everyone's tiptoeing around is the huge drive to get Jonathon Pollard pardoned by President Obama, extensively linked to Middle East peace. And if we go back in time, Marc Rich argued to the current Attorney General that -- well, Shamone (sp?) Paris said that, hey, you should free Marc Rich even though he was trafficking oil with Iran because it'll be good for Israel. Charles Winters was pardoned by Bush, too. He was an Israeli arms smuggler. Hank Greenspun by J.F.K., Alice Wimmer (sp?) , J.F.K.

13:30:15

VOGELI'm guessing, Grant, that you work...

13:30:16

GRANTI guess that I'm...

13:30:17

VOGEL...that you work in this area of law?

13:30:18

GRANTOh, yeah. I watch it.

13:30:18

VOGELOr is this just a passionate interest?

13:30:20

GRANTI watch it.

13:30:21

VOGELAn avocation.

13:30:21

GRANTI just think the best way to be pardoned is to be hooked into the Israel lobby in this country and the campaign contribution network and that's its horribly corrupting to this country to see this type of pardon underway.

13:30:35

RUCKMANI'd like to say a couple things about that, if I could.

13:30:37

VOGELSure.

13:30:37

RUCKMANBefore Sam gets to it.

13:30:38

VOGELGo right ahead, Professor Ruckman.

13:30:39

RUCKMANPollard hasn't been pardoned. So there's one thing to consider. But Abraham Lincoln granted a pardon to a spy out of sentiments for the government of England. And George Washington granted one out of sentiments for the -- I think it was Switzerland. So the idea of pardoning because of foreign policy consideration is not a new thing.

13:30:59

VOGELAnd the Department of Justice along with the department of state or anybody else who might try and motivate the Department of Justice has their own agenda in who they recommend for pardons. So how does that reconcile the Justice Department having its own agenda and the fact that President Obama is only going to see a tiny bit of what's recommended to him? Sam, how would you explain that?

13:31:22

MORISONYeah, I would say that I would encourage President Obama to retake control of the process. That, you know, there's theory in practice and theory the President decides. In practice, he's largely seated control to the Justice Department because they control the flow of information. He doesn't know anything except what they tell him. So if he wants to be able to grant cases consistent with his own policy views about criminal justice issues, he needs to, one, appoint his own pardon attorney and, two, come up with some clear criteria that directs the pardon office how to process the cases, how he wants them evaluated.

13:31:59

MORISONThen he's going to get recommendations consistent with his own views and then he can pick and choose. He can decide what he's going to do. No one says he has to grant them all. But if he seeds control to the prosecutors in the justice department, he can't complain if all he gets is a steady stream of, no.

13:32:17

VOGELYou have raised a number a fascinating issues gentleman. Thank you so much. I feel I understand the process at least a little bit more. Sam Morison is an attorney who has worked for the Justice Department's Office of the pardon attorney for more than 13 years, under three presidents. He's left that office in July and is now the Appellate Defense Council in the Defense Department's Office of military commissions. Joining us by phone from Rock Valley College in Illinois was P.S. Ruckman, professor of political science and the editor of the blog, Pardon Power. You've been listening to the Kojo Nnamdi show, thank you so much.

13:32:57

VOGELWhen we come back from this conversation, we're going to be sitting with four women, or maybe just three, who are going to take us on a musical romp through being a woman and growing up. Thanks very much for listening. I'm Diane Vogel sitting in for Kojo. We'll be back in a moment.

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